Terms of Service Agreement

This Terms of Service Agreement (“Agreement”) provides the terms and conditions pursuant to which DBA, LLC., a Wisconsin limited liability company, dba (“Badger State Web Services”) and (“BSWS”) will provide certain local search and related Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

THE SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEREBY FORMED BETWEEN BSWS AND CLIENT WITH RESPECT TO THE SUBJECT MATTER HEREIN.

1. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), BSWS will provide Client with one or more services in one or more of the following categories: (i) local search marketing, SEO (Search Engine Optimization); (ii) paid search marketing; (iii) social media management; and (iv) Web content generation (including email marketing). Unless Client purchases a multi-location subscription, Services shall correspond to one unique geographic location, which shall be designated and agreed upon during the sign-up process. Services for separate locations will increase fees payable by Client hereunder. In connection with the delivery of the Services, BSWS may or not provide Client with access to detailed reporting digital marketing services provided using its online proprietary reporting portal (“Dashboard / Presence portal”).
2. Term; Authorization. BSWS will provide the Services to Client on a month-to-month basis. A one-time set-up fee and the first-term installment payment is due to BSWS on sign-up via credit card payment. Installment payment amounts are subsequently billed and collected for the upcoming month as provided herein. Clients that require check payments are billed quarterly in advance. Client authorizes BSWS to act on Client’s behalf as Client’s local search marketing partner during the term of this Agreement and all renewal terms, with respect to all Services provided by BSWS hereunder. Such authorization includes the right to post, publish and edit Client’s Web business profile information and Internet and social media advertisements and (where elected by Client) to post content to such profiles, advertisements or campaigns.

1. Copyright. Ownership of content generated by BSWS in connection with the Services transfers from BSWS to Client only after payment in full by Client of all invoices applicable to such content. BSWS’s Presence portal and any methods of optimization disclosed by BSWS to client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by BSWS. Client acknowledges that, at BSWS’s expense, a domain name may be registered and hosted with a microsite created for Client in furtherance of delivery of the Services hereunder. The microsite and related domain are integrated into BSWS’s proprietary digital marketing system and shall remain the property of BSWS and shall not be transferrable to Client.
2. Fees and Payment. As consideration for the Services, Client agrees to pay a one-time set-up fee and the periodic subscription fees associated with the Services requested by Client and identified during the sign-up process. Subscription fees are subject to modification by BSWS at any time. Canadian clients are subject to periodic pricing changes to reflect changes in the exchange rate; If Client chooses to pay in a currency other than the U.S. dollar (USD), a conversion may be imposed at the time of payment based on applicable exchange rates. Additional fees may be charged by Client’s credit card or bank for cross-border transactions. None of these additional fees are received by BSWS, and BSWS shall not be liable for any portion of such additional fees.

As a digital marketing agency, most of our products and services are online and are recurring for our clients; therefore, we are only sending estimates & invoices via E-mail. We also encourage our customers to process their payments electronically through our secure payment gateway. However, if you request the old-fashioned way (snail-mail) please email billing@badgerstateweb.com. Paper payments can be mailed to Badger State Web Services N9508 Catlin Ave, Loyal, WI 54446

All payments from Client for the Services shall be made in immediately available funds, in U.S. Dollars, by credit card (Visa, MasterCard or American Express) or automatic checking account withdrawal (“ACH”). BSWS may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Due to the nature of the Services, all sales for each periodic Services period are non-refundable. BSWS is authorized to charge the subscription renewal fee for upcoming periodic Services to the credit card or ACH account provided to BSWS by Client. Client may change its billing information on 30-days written notice to BSWS. Invoices, where requested by Client for quarterly check payments, shall be delivered solely by e-mail to Client’s e-mail notice address provided to BSWS during the sign-up process.

Check payment customers must pre-pay for three months in advance and will be billed quarterly in advance of the Services being provided thereafter. Credit Card customers must pre-pay for one month in advance and will be billed monthly in advance of the Services being provided thereafter.

Failure by Client to maintain valid and current payment arrangements with BSWS may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by BSWS. If BSWS is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to BSWS from Client, then all amounts due from Client shall be increased so that the net amount actually received by BSWS after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.  A 10% or $10 late payment fee (whichever is greater) will be assessed on any unpaid balance remaining after 15 days for recurring services. A 10% late payment fee will be assessed on any unpaid balance remaining after 30 days for website design & development projects.

5. Termination.

(a) This Agreement and any renewal subscription arising hereunder may be terminated by Client by delivery to BSWS of Client’s intention not to renew at least five days prior to the end of the then-current periodic subscription term. Any termination notice received later than five days prior to the end of the current subscription term shall be effective immediately following the next applicable renewal term.

(b) BSWS may terminate this Agreement and/or suspend all or any portion of the Services at any time, without notice to Client, in the event Client fails to maintain valid payment information with BSWS, or in the event that Client fails to pay for the Services.

(c) Either party may terminate this Agreement immediately in the event that the other party becomes insolvent, or the other party makes an assignment for the benefit of creditors, or the other party does not pay its debts as they become due or admits its inability to pay its debts when due, or the other party files or has filed against it a petition under any provisions of the Bankruptcy Act or an application for a receiver, trustee or custodian is made with respect to such Party.

(d) BSWS may terminate this Agreement on at least 60 days written notice to Client in the event that BSWS should determine that it will cease providing the same type of Services to all other eligible Clients that were receiving such Services as Client.

(e) Upon any termination of this Agreement for any reason, Client shall discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by BSWS hereunder (including without limitation, BSWS’s trademarks and the Reporting System) and delete from all storage servers and devices all such work product or materials received under this Agreement. Upon termination of this Agreement, BSWS shall return to Client, delete or destroy (in BSWS’s sole and absolute discretion) all Client Data (defined herein) provided by Client during the term of this Agreement.

6. Client Data; License. Client is responsible for providing BSWS with current and accurate data necessary for BSWS to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork and other printed material or data submitted by Client to BSWS to enable BSWS to provide the Services hereunder. Client hereby grants BSWS a royalty-free license during the term of this Agreement and all renewal terms to use the Client Data for purposes of providing the Services.
7. Client Representations and Warranties.Client represents and warrants to BSWS that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to BSWS for the use contemplated by the Services; (b) the use by BSWS of the Client Data for the purposes of providing the Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (f) this Agreement is legal, valid, binding and enforceable against Client; and (g) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.
8. Client Indemnification. Client shall indemnify, defend and hold harmless BSWS, together with its members, officers, directors, employees, agents, contractors, and permitted assigns, from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by BSWS on the Client Data in performing the Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.
9. Express Limited Warranty; Limitations on Liability.

(a) Limited Warranty. BSWS shall provide the Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the marketing industry in which the Services subside. Due to periodic changes in search engine algorithms and accessibility of open source citations, BSWS cannot guarantee search engine result pages or line placement where Client’s business will appear.

(b) Representations and Warranties Limited. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED “AS-IS” AND BSWS DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 8(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.

(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of BSWS is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of BSWS. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

(d) Limitations on Liability. If BSWS fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then BSWS’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that Client has paid for the Services in question during the subscription term in question. IN NO EVENT SHALL BSWS OR ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO BSWS OR THE DELAY OR INABILITY TO USE ANY SERVICES, OR BSWS’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF BSWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION FOR NON-PAYMENT BY BSWS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.

(e) Search Engine Guideline Penalties. Client shall inform BSWS of any past or future marketing plans implemented or to be implemented by Client so that BSWS may factor such plans into its planning for the Services hereunder. BSWS shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to BSWS.

10. Confidential Information.

(a) Definition. For purposes of this Section 10, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Wisconsin, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that BSWS may share information about BSWS’s customers and basic information about Client’s listing and statistical summary data with prospective customers for the purpose of marketing BSWS’s services. The terms of this Agreement, along with BSWS’s pricing, software, and technical documentation related to the Services, shall be deemed Confidential Information regardless of any lack of designation.

(b) Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 9), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 9 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

11. Miscellaneous.

(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining BSWS’s written consent, except that Client may assign this Agreement without BSWS’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Subscriber’s assets not involving a direct competitor of BSWS; provided that Client provides prompt written notice to BSWS of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective when seen at this website link and or upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to BSWS in connection with entering into this Agreement or to such other address as provided in writing by Client to BSWS for such purposes. Except as otherwise provided in this Agreement, any notice to BSWS that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: info@Badgerstateweb.com or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier services, such as Federal Express or equivalent, to DBA, LLC., N9508 Catlin Ave, Loyal, WI 54446, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, BSWS may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by BSWS from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact BSWS to resolve such technical issues.

(c) Force Majeure. Due performance of any duty or obligation hereunder by BSWS hereunder shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event BSWS’s reasonable control. Client acknowledges that BSWS has no responsibility for or control over search engines or Internet database partner(s) usage of customer data in fulfilling Internet search queries or any particular placement of any information from Client as a result of a search or query on any third party Web site. Client further acknowledges that BSWS has no responsibility for, or control over, third-party social media content requirements or rules applicable thereto.

(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal, or unenforceable for any reason, then the validity, legality, or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition, or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by BSWS must be in writing and signed by an authorized representative of BSWS.

(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

(g) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or (except as expressly set forth in Section 2) agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.

(h) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Wisconsin applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Clark County, Wisconsin for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

(i) In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, BSWS may revise this Agreement at any time by updating this posting as a way in providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

TOSA: 7.2015